Citation Nr: 0810365
Decision Date: 03/28/08 Archive Date: 04/09/08
DOCKET NO. 06-02 362 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUES
1. Entitlement to service connection for Type II diabetes
mellitus, to include as due to herbicide exposure.
2. Entitlement to service connection for coronary artery
disease, also claimed as secondary to Type II diabetes
mellitus.
3. Entitlement to service connection for residuals of a
stroke, also claimed as secondary to Type II diabetes
mellitus.
REPRESENTATION
Appellant represented by: Mississippi Veterans Affairs
Commission
ATTORNEY FOR THE BOARD
T. Adams, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1966 to July
1968.
This case is before the Board of Veterans' Appeals (Board) on
appeal from a May 2005 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Jackson,
Mississippi, which denied the benefits sought on appeal.
FINDINGS OF FACT
1. The competent medical evidence does not demonstrate that
the veteran's diabetes mellitus was incurred in or aggravated
by his active service, or manifested to a compensable degree
within one year following his separation from service, or is
due to exposure to herbicides during his active service.
2. The competent medical evidence does not demonstrate that
the veteran's coronary artery disease was incurred in or
aggravated by his active service, or that coronary artery
disease manifested to a compensable degree within one year
following his separation from service.
3. The competent medical evidence does not demonstrate that
the veteran's residuals from a stroke were incurred in or
aggravated by his active service, or manifested to a
compensable degree within one year following his separation
from service.
CONCLUSIONS OF LAW
1. Service connection for Type II diabetes mellitus is not
warranted. 38 U.S.C.A. §§ 1110, 1112, 1131, 1133, 5103,
5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303,
3.304, 3.307, 3.309 (2007).
2. Service connection for coronary artery disease is not
warranted. 38 U.S.C.A. §§ 1110, 1112, 1131, 1133, 5103,
5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303,
3.304, 3.307, 3.309 , 3.310(a) (2007).
3. Service connection for residuals of a stroke is not
warranted. 38 U.S.C.A. §§ 1110, 1112, 1131, 1133, 5103,
5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303,
3.304, 3.307, 3.309 , 3.310(a) (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Upon receipt of a complete or substantially complete
application, VA must notify the claimant and any
representative of any information, medical evidence, or lay
evidence not previously provided to VA that is necessary to
substantiate the claim. This notice requires VA to indicate
which portion of that information and evidence is to be
provided by the claimant and which portion VA will attempt to
obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103,
5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.159
(2007). The notice must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim, or something to the effect that
the claimant should "give us everything you've got
pertaining to your claim(s)." Pelegrini v. Principi, 18
Vet. App. 112 (2004).
In addition, the notice requirements apply to all five
elements of a service-connection claim, including: (1)
veteran status; (2) existence of a disability; (3) a
connection between the veteran's service and the disability;
(4) degree of disability; and (5) effective date of the
disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473
(2006). Further, this notice must include notice that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
Notice errors are presumed prejudicial unless VA shows that
the error did not affect the essential fairness of the
adjudication. To overcome the burden of prejudicial error,
VA must show (1) that any defect was cured by actual
knowledge on the part of the claimant; (2) that a reasonable
person could be expected to understand from the notice what
was needed; or, (3) that a benefit could not have been
awarded as a matter of law. Sanders v. Nicholson, 487 F.3d
881 (2007).
In October 2004 and February 2005, prior to the initial
adjudication of the claims, the veteran was notified of the
evidence not of record that was necessary to substantiate the
claims. He was told that he needed to provide the names of
persons, agency, or company who had additional records to
help decide his claims. He was informed that VA would
attempt to obtain his claims and determine what additional
information was needed to process his claims, schedule a VA
examination if appropriate, obtain VA medical records, obtain
service records, and obtain private treatment reports as
indicated.
It was also requested that he provide evidence in his
possession that pertained to the claims. There is no
allegation from the veteran that he has any evidence in his
possession that is needed for a full and fair adjudication of
these claims.
The veteran was given notice of what type of information and
evidence he needed to substantiate a claim for an increased
rating in March 2006 and March 2007 should his service
connection claims be granted. It is therefore inherent in
the claims that the veteran had actual knowledge of the
rating element of an increased rating claim.
Therefore, the Board finds that adequate notice was provided
to the appellant prior to the transfer and certification of
the veteran's case to the Board and complied with the
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b).
Next, the statutes and regulations require that VA make
reasonable efforts to assist the claimant in obtaining
evidence necessary to substantiate a claim. VA's duty to
assist includes (1) obtaining records not in the custody of a
federal department or agency; (2) obtaining records in the
custody of a federal department or agency; (3) obtaining
service medical records or other records relevant to active
duty and VA or VA- authorized medical records; and, (4)
providing medical examinations or obtaining medical opinions
if necessary to decide the claim. 38 C.F.R. § 3.159(c).
VA has a duty to obtain a medical examination if the evidence
establishes (1) a current disability or persistent or
recurrent symptoms of a disability, (2) an in-service event,
injury, or disease, (3) current disability may be associated
with the in-service event, and (4) there is insufficient
evidence to make a decision on the claim. McClendon v.
Nicholson, 20 Vet. App. 79 (2006).
In this case, the veteran's service medical records and all
identified and authorized post-service medical records
relevant to the issues on appeal have been requested or
obtained. VA has obtained the veteran's service medical
records with the exception of records from the 125th Medical
Detachment. VA requested these additional service medical
records from the service department which indicated that the
records could not be located. The Board is aware that in
such a situation it has a heightened duty to assist a
claimant in developing his or her claim. This duty includes
the search for alternate medical records, as well as a
heightened obligation on the Board's part to explain its
findings and conclusions, and carefully consider the benefit-
of-the-doubt rule. Pruitt v. Derwinski, 2 Vet. App. 83, 85
(1992); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The
Board finds that VA is not obligated to obtain medical
examinations in this case because the evidence does not
establish that the veteran suffered an event, injury, or
disease in service. 38 C.F.R. § 3.159(c)(4). Therefore, the
available records and medical evidence have been obtained in
order to make adequate determinations as to these claims.
In sum, the Board finds the duty to assist and duty to notify
provisions have been fulfilled and no further action is
necessary under those provisions.
A claimant with active service may be granted service
connection for a disease or disability either incurred in or
aggravated by active military service. 38 U.S.C.A. §§ 1110,
1131; 38 C.F.R. §§ 3.303, 3.304.
The Board notes that a veteran who served in the Republic of
Vietnam during the Vietnam era is presumed to have been
exposed to certain herbicide agents (e.g. Agent Orange),
absent affirmative evidence to the contrary. 38 U.S.C.A.
§ 1116 (a) (West 2002); 38 C.F.R. §§ 3.307(a)(6)(iii) (2007).
Service connection based on herbicide exposure will be
presumed for certain specified diseases that become manifest
to a compensable degree within a specified period of time in
the case of certain diseases. 38 U.S.C.A. § 1116; 38 C.F.R.
§§ 3.307(a)(6), 3.309(e). The specified diseases include
Type 2 diabetes. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R.
§ 3.309(e). However, even if the veteran's disease is not
subject to the presumption, he is not precluded from
establishing direct service connection. Combee v. Brown, 34
F.3d 1039 (Fed. Cir. 1994).
While the veteran does not assert that he served in Vietnam,
he claims that he was exposed to herbicides in Korea.
Specifically, he contends that as a wheel vehicle mechanic,
he transported chemical drums to various locations for
spraying in the DMZ. During transportation of the drums, one
fell off the back of a truck and he had to recover it. He
claims that he was nauseated and started coughing and was
admitted to the 125th Medical Detachment at Camp Red Cloud in
February 1967 where he was treated for two days. He stated
that he was required to wash down the trucks after each of
the transport operations and was never told what type of
chemicals were in the drums. He alleges that the spraying of
chemicals continued on his tour of duty in Korea which led to
Type II diabetes mellitus and complications of the disease.
In this case, the veteran did not serve on active duty in
Vietnam, but rather in Korea. Thus, the veteran may not be
presumed to have been exposed to Agent Orange in Vietnam, but
he may nevertheless show that he was actually exposed to
Agent Orange while in Korea. The Department of Defense has
indicated that Agent Orange was used in Korea from April 1968
to July 1969, long after the veteran's release from active
duty. VHA Directive 2000-027 (September 5, 2000). In this
case the veteran's service personnel records show that he
served in Korea from November 1966 to December 1967. While
the veteran claims that he was exposed to herbicides during
his service in Korea, there is no evidence that Agent Orange
was used in Korea prior to April 1968. In addition, mere
exposure to Agent Orange is not a compensable occurrence.
The Board finds that there is no record of the veteran's
exposure to herbicides in service, nor any record
demonstrating that herbicides were tested, stored,
transported, or sprayed in Korea during his period of service
in Korea. The Board thus finds that the veteran was not
presumptively exposed to herbicides during his military
service, and is therefore not entitled to service connection
for diabetes mellitus on a presumptive basis. The Board will
therefore address the merits of the veteran's claim on
alternate bases.
Service connection may be established for a disease or injury
incurred in or aggravated by service. 38 U.S.C.A. § 1110;
38 C.F.R. § 3.303, 3.304. Certain chronic diseases,
including diabetes, arteriosclerosis, and organic diseases of
the nervous system, may be presumed to have incurred during
service if they become disabling to a compensable degree
within one year of separation from active duty. 38 U.S.C.A.
§§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
The disease entity for which service connection is sought
must be chronic as opposed to merely acute and transitory in
nature. For the showing of chronic disease in service, there
is required a combination of manifestations sufficient to
identify the disease entity and sufficient observation to
establish chronicity at the time as distinguished from merely
isolated findings or a diagnosis including the word chronic.
Continuity of symptomatology is required where the condition
noted during service is not, in fact, shown to be chronic or
where the diagnosis of chronicity may be legitimately
questioned. Where the fact of chronicity in service is not
adequately supported then a showing of continuity after
discharge is required to support the claim. 38 C.F.R.
§ 3.303(b).
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
Service connection generally requires evidence of a current
disability with a relationship or connection to an injury or
disease or some other manifestation of the disability during
service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000);
Mercado-Martinez v. West, 11 Vet. App. 415 (1998); Cuevas v.
Principi, 3 Vet. App. 542 (1992). Where the determinative
issue involves medical causation or a medical diagnosis,
there must be competent medical evidence to the effect that
the claim is plausible. Lay assertions of medical status do
not constitute competent medical evidence. Espiritu v.
Derwinski, 2 Vet. App. 492 (1992).
Service connection may be granted for a disability which is
proximately due to or the result of a service-connected
disease or injury. 38 C.F.R. § 3.310(a) (2007). Secondary
service connection may be found where a service connected
disability aggravates another condition, that is, where there
is an additional increment of disability of the other
condition which is proximately due to or the result of a
service- connected disorder. Allen v. Brown, 7 Vet. App. 439
(1995).
The record before the Board contains service medical records
and post-service medical records, which will be addressed as
pertinent. Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (a
discussion of all evidence by the Board is not required when
the Board has supported its decision with thorough reasons
and bases regarding the relevant evidence).
Type II Diabetes Mellitus
Based on a thorough review of the record, the Board finds
that the preponderance of the evidence is against the
veteran's claim for service connection for Type II diabetes
mellitus on a direct or presumptive basis.
The service medical records are void of any findings,
complaints, symptoms, or diagnoses attributable to Type II
diabetes mellitus. Urinalysis tests performed at enlistment
in February 1966, and at separation in June 1968 were
negative for sugar.
Private medical records show treatment of Type II diabetes
mellitus. Records dated in January 1998 show a diagnosis of
Type 2 diabetes mellitus.
VA medical records dated in December 2002 show a diagnosis
and treatment of Type II diabetes mellitus. Records dated in
October 2005 indicate that he was provided with insulin a
result of high glucose readings. Records dated in January
2007 show continued treatment of the disease.
The veteran's post-service medical records are negative for
any diagnosis of Type II diabetes mellitus within one year of
separation from active duty. In fact, the post-service
medical records are negative for a diagnosis of Type II
diabetes mellitus until many years after separation from
active service. A significant lapse in time between service
and post-service medical treatment may be considered as part
of the analysis of a service connection claim. Maxson v.
Gober, 230 F.3d 1330 (Fed. Cir. 2000). While the competent
medical evidence shows that the veteran now suffers from Type
II diabetes mellitus, the evidence does not show that the
current Type II diabetes mellitus was incurred in or
aggravated by service. Furthermore, there is no competent
medical opinion that relates his Type II diabetes mellitus to
active duty. In the absence of competent medical evidence
linking any current Type II diabetes mellitus to service,
service connection must be denied.
While the veteran asserts that he was exposed to herbicides
in Korea, service personnel records show that he served in
Korea prior to April 1968. Therefore, the presumption of
service connection based on herbicide agents does not apply.
38 U.S.C.A. § 1116 (a) (West 2002 & Supp. 2007); 38 C.F.R.
§ 3.307 (a)(6)(iii)(2007). In the absence of competent
medical evidence linking Type II diabetes mellitus to service
or showing any Type II diabetes mellitus to a compensable
degree within one year following separation from service,
service connection must be denied.
The Board recognizes the veteran's contentions as to the
diagnosis and relationship between his service and the
claimed disability. Lay statements are considered to be
competent evidence when describing the features or symptoms
of an injury or illness. Falzone v. Brown, 8 Vet. App. 398
(1995). As a layperson, however, he is not competent to
provide an opinion requiring medical knowledge, such as a
diagnosis, or an opinion relating to medical causation and
etiology that requires a clinical examination by a medical
professional. Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
The Board acknowledges that the veteran is competent to give
evidence about what he experienced. Layno v. Brown, 6 Vet.
App. 465 (1994). Competency, however, must be distinguished
from weight and credibility, which are factual determinations
going to the probative value of the evidence. Rucker v.
Brown, 10 Vet. App. 67 (1997). As a result, his assertions
do not constitute competent medical evidence that his current
Type II diabetes mellitus began during, or is a result of,
his service.
Accordingly, the Board finds that the preponderance of the
evidence is against the veteran's claim. The evidence does
not show that Type II diabetes mellitus was incurred in or
aggravated by service; is presumed to be the result of
exposure to herbicides since the veteran did not serve in
Vietnam and served in Korea prior to April 1968; or
manifested to a compensable degree within one year following
the veteran's separation from service. Therefore, service
connection for Type II diabetes mellitus, also claimed as due
to herbicide exposure, is denied.
Coronary Artery Disease
Based on a thorough review of the record, the Board finds
that the preponderance of the evidence is against the
veteran's claim for service connection for coronary artery
disease (CAD) on a direct or presumptive basis.
The veteran's service medical records are void of findings,
complaints, symptoms, or diagnoses attributable to CAD.
Reports of the February 1966 entrance examination and June
1968 separation examination reflect normal clinical
evaluations of the heart and vascular system.
Private medical records dated in January 1997 show that the
veteran had a normal heart and vascular system. In February
1998, cardiac catheterization testing showed that his
coronary arteries were normal. He had chest pain of an
undetermined etiology.
VA medical records dated in December 2002 reflect a diagnosis
of CAD status post stent placement which was performed in
2001. An August 2006 report states that he had no symptoms
of CHF (congestive heart failure). Records dated in January
2007 show continued treatment of CAD.
The veteran's post-service medical records are negative for
any diagnosis of CAD within one year of separation from
active duty. In fact, the post-service medical records are
negative for a diagnosis of CAD until many years after
separation. A significant lapse in time between service and
post-service medical treatment may be considered as part of
the analysis of a service connection claim. Maxson v. Gober,
230 F.3d 1330 (Fed. Cir. 2000). While the competent medical
evidence does show that the veteran now suffers from CAD the
evidence does not show that the current CAD was incurred in
or aggravated during service. Furthermore, there is no
competent medical opinion that relates CAD to active duty.
In the absence of competent medical evidence linking any
current CAD to service, service connection must be denied.
With respect to the veteran's claim for service connection
for CAD as secondary to Type II diabetes mellitus, the Board
notes that secondary service connection presupposes the
existence of an established service-connected disability. In
this case, the veteran is not service-connected for Type II
diabetes mellitus. Thus, there can be no secondary service
connection for any condition allegedly due to Type II
diabetes mellitus. Where application of the law to the facts
is dispositive, the appeal must be terminated because there
is no entitlement under the law to the benefit sought.
Sabonis v. Brown, 6 Vet. App. 426 (1994). As there is no
legal basis for an award of secondary service connection for
CAD, the claim for secondary service connection must be
denied as a matter of law.
The Board recognizes the veteran's contentions as to the
diagnosis and relationship between his service and the
claimed disability. Lay statements are considered to be
competent evidence when describing the features or symptoms
of an injury or illness. Falzone v. Brown, 8 Vet. App. 398
(1995). As a layperson, however, he is not competent to
provide an opinion requiring medical knowledge, such as a
diagnosis, or an opinion relating to medical causation and
etiology that requires a clinical examination by a medical
professional. Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
The Board acknowledges that the veteran is competent to give
evidence about what he experienced. Layno v. Brown, 6 Vet.
App. 465 (1994). Competency, however, must be distinguished
from weight and credibility, which are factual determinations
going to the probative value of the evidence. Rucker v.
Brown, 10 Vet. App. 67 (1997). As a result, his assertions
do not constitute competent medical evidence that his current
CAD began during, or is a result of, his service.
Accordingly, the Board finds that the preponderance of the
evidence is against the veteran's claim. The evidence does
not show that coronary artery disease was were incurred in or
aggravated by service, or manifested to a compensable degree
within one year following the veteran's separation from
service. Therefore, service connection for coronary artery
disease, is denied.
Residuals of a Stroke
Based on a thorough review of the record, the Board finds
that the preponderance of the evidence is against the
veteran's claim for service connection for residuals of a
stroke on a direct or presumptive basis.
The veteran's service medical records are void of findings,
complaints, symptoms, or diagnoses attributable to a stroke.
VA medical records dated in December 2002 reflect that the
veteran had a stroke with left hemiparesis five years ago.
In August 2003, he complained of increased weakness of the
left arm, decreased memory, and frontal headaches. The
assessment was rule out intracranial mass lesion. Records
dated in March 2005 note that he did not have another stroke
or TIA (transient ischemic attack). Records dated in January
2007 indicate that the last carotid doppler was performed in
January 2006 and that he had bilateral plaque disease with
less than 50 percent ICA (internal carotid artery) stenoses.
The veteran's post-service medical records are negative for
any diagnosis of a stroke or residuals thereof within one
year of separation from active duty. In fact, the post-
service medical records are negative for a diagnosis of a
stroke until many years after separation. A significant
lapse in time between service and post-service medical
treatment may be considered as part of the analysis of a
service connection claim. Maxson v. Gober, 230 F.3d 1330
(Fed. Cir. 2000). While the competent medical evidence does
show that the veteran now suffers from residuals of a stroke
the evidence does not show that the current residuals were
incurred in or aggravated during service. Furthermore, there
is no competent medical opinion that relates a stroke or
residuals of a stroke to active duty. In the absence of
competent medical evidence linking any current residuals of a
stroke to service, service connection must be denied.
With respect to the veteran's claim for service connection
for residuals of a stroke as secondary to Type II diabetes
mellitus, the Board notes that secondary service connection
presupposes the existence of an established service-connected
disability. In this case, the veteran is not service-
connected for Type II diabetes mellitus. Thus, there can be
no secondary service connection for any condition allegedly
due to Type II diabetes mellitus. Where application of the
law to the facts is dispositive, the appeal must be
terminated because there is no entitlement under the law to
the benefit sought. Sabonis v. Brown, 6 Vet. App. 426
(1994). As there is no legal basis for an award of
secondary-service connection for residuals of a stroke, the
claim for secondary service connection must be denied as a
matter of law.
The Board recognizes the veteran's contentions as to the
diagnosis and relationship between his service and the
claimed disability. Lay statements are considered to be
competent evidence when describing the features or symptoms
of an injury or illness. Falzone v. Brown, 8 Vet. App. 398
(1995). As a layperson, however, he is not competent to
provide an opinion requiring medical knowledge, such as a
diagnosis, or an opinion relating to medical causation and
etiology that requires a clinical examination by a medical
professional. Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
The Board acknowledges that the veteran is competent to give
evidence about what he experienced. Layno v. Brown, 6 Vet.
App. 465 (1994). Competency, however, must be distinguished
from weight and credibility, which are factual determinations
going to the probative value of the evidence. Rucker v.
Brown, 10 Vet. App. 67 (1997). As a result, his assertions
do not constitute competent medical evidence that his current
residuals of a stroke began during, or are a result of, his
service.
Accordingly, the Board finds that the preponderance of the
evidence is against the veteran's claim. The evidence does
not show that a stroke or any residuals thereof were incurred
in or aggravated by service, or manifested to a compensable
degree within one year following the veteran's separation
from service. Therefore, service connection for residuals of
a stroke, is denied.
ORDER
Service connection for Type II diabetes mellitus, to include
as due to herbicide exposure, is denied.
Service connection for coronary artery disease, also claimed
as secondary to Type II diabetes mellitus, is denied.
Service connection for residuals of a stroke, also claimed as
secondary to Type II diabetes mellitus, is denied.
____________________________________________
L. M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs